Police v Tomasi [2010] WSSC 123 (22 October 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

MATAGI TOMASI
male of Satui Fou
Defendant

Counsel: Fetogi Vaai and Phaedra Valoia for the prosecution
Unrepresented

Ruling: 15th October 2010

Reasons for Ruling: 22nd October 2010

DECISION OF THE COURT

Introduction

1. On the afternoon of the 21st November 2009 Police Corporal Tusagi of the Faleolo police post received a telephone call from some unknown person who did not identify himself or herself that marijuana were being sold from a red car at the Mulifanua wharf and the said car was travelling towards Faleolo direction. Police Corporal and another police officer Pupi then drove towards the Mulifanua wharf to look for the red car. As they drove along the grounds of Aggie Greys Resort which adjoins the main road they saw a red car inside the entrance of the resort. The two officers suspected this was the same red car relayed over the telephone. They turned inside the resort grounds and stopped beside the red car.

2. Police Corporal told police officer Pupi to get out and search the car. Corporal also got out and told the driver of the car and the accused who was on the passenger's side that the police has the power to search them and the vehicle without a warrant as they were suspected of being in possession of marijuana. At that very moment the accused got out and ran away. He was chased by officer Pupi who was too slow to catch the accused. In the meantime the Corporal ordered the co-accused to get out of his car and get inside the police vehicle which he did while the Corporal searched the red car and found an unopened bottle of beer inside the car. The co-accused and the two police officers then drove away in the police car. As they entered the main road the accused was seen walking towards them. He got into the police car and both were taken to the Faleolo Police post. A youth who was sitting in small hut opposite the entrance to the resort was told by the Corporal to drive the co-accused's vehicle to the Faleolo police post.

3. Both the accused and co-accused were bodily searched at Faleolo Police post. Nothing was found on the co-accused. One joint was found in the pocket of the shorts of the accused. Both the accused and the co-accused were charged with the possession of the joint of marijuana found on the co-accused and were held in custody until the following day.

4. Both pleaded not guilty to the charge of possession of narcotics. They were both employees of Aggie Greys Resort. At their trial the co-accused testified. He was driving from Mulifanua village towards the resort after 3 o'clock in the afternoon to start shift work at 4 o'clock as a chef. As he approached the Mulifanua wharf he saw the accused walking towards the resort. He picked up the accused and drove to the resort. He parked the car inside the entrance to the resort to await the resort staff bus, as the bus cannot enter the grounds. The reason he waited for the bus was because the bus driver was organizing a lotto bonus game and the co-accused wanted to give the driver his number and money for the lottery bonus. Similarly the bottle of beer inside the car was also for the bus driver.

5. At the conclusion of the defended hearing I dismissed the charge against the co-accused. In respect of the accused I was satisfied that narcotic was found on the co-accused when he was searched at the Faleolo Police Post, but I sought submissions from the prosecution on the validity of the warrantless search of the vehicle inside the resort compound, the arrest of the co-accused inside the compound and the arrest of the accused the public road outside the resort compound. I indicated to counsel for the prosecution that if indeed the warrantless search was invalid and unreasonable and the arrests were illegal and unreasonable then the subsequent searches at the Faleolo Police post were also invalid and the marijuana joint found on the accused was inadmissible as evidence against the accused. I bear in mind that under the common law, evidence obtained by an illegal search is admissible subject to my discretion to rule it out on the ground of unfairness to the accused.

Submissions by the Prosecution

6. On the validity of the search without a warrant counsel for the prosecution cited the decision of this Court in Police v Masame unreported, 30/10/07; and Police v Nauer 17/4/09. In relation to information given by police informers to the police, Sapoliu CJ in Police v Masame said:

"In my view, the information given to the police was not just any member of the public. It was from a police informer. The police must have trusted the correctness of the information from their police informers and sometimes under cover police officers provided such information provides reasonable grounds for belief."

And in Police v Nauer, Nelson J observed:

"In my respectful view information gleaned from police informers is sufficient to provide reasonable cause and justified the detective inspector's application in this case. Particularly where the informer is a reliable and cultivated source."

7. The facts submitted by the prosecution which justified the police in entering the resort compound to search the vehicle and arrest the accused and co-accused are stated in paragraph 2.1 of the written submissions:

"On 21 November 2009 a police informer reported suspicion of a vehicle with licence plate # 12077 believed to be used for marijuana dealings. The police who were on duty attended the call and spotted the described vehicle parked along the driveway leading to Aggie Greys Resort at Satapuala."

Discussion

8. It must be said immediately that the prosecution submission referred to in paragraph 7 above is factually incorrect. In the first place the person who telephoned the police was not a police informer. Any member of the public who informs or relay any suspicious criminal activity to the police cannot be labeled a police informer. There are many areas of law enforcement in which the detection and successful prosecution of offending requires the use of police informants, undercover police or agent provocateur. Indeed police informants may become involved in the commission of offences and sometimes, perhaps, derive personal benefit from those offences. An example is provided by the New Zealand Court of Appeal decision in R v Smith (Malcolm) [2000] NZCA 99; (2000) 3 NZLR 656 in which the police informer was permitted to deal in drugs (and thus disseminate drugs into the community) and to acquire for his own use. Having said that however there comes a point at which the court do intervene.

9. The person who telephoned the police on the afternoon of the 21st November 2009 did not identify himself or herself. She could not be labeled as a police informer. Secondly that person did not give the number plate of the vehicle, the only description given was that it was a red car. Testimony by both the officers who went looking for the red car was limited to the colour description of the car. The description of the number plate given in counsels submissions is factually incorrect if not misleading. No plate number was relayed over the telephone.

10. Section 14A Narcotics Act 1967 grants to the police the power to search without a warrant if the police has reasonable cause to believe that there is any building, ... vehicle or place any narcotic for which an offence against the Act has been committed, and under the circumstances an immediate search is to be carried out and there is no time to apply for a search warrant.

11. Without trying to extract the details of the red car or any other details to establish the reliability of the information given, the police officers went looking for the red car so that when they spotted the red car inside the resort compound they had no reasonable grounds that it was the same car described over the telephone. As they had already formed the view to search the car, the warrantless search of the vehicle could not be justified under section 14A. In his own words the police corporal testified:

"As we approached the driveway to Aggies Guest House at Mulifanua, we saw a red car parking on the side of the driveway to the Guest House and we suspected this was the car described by the person who called. We turned into the driveway and stopped beside the car and I told Fred (police officer) to get out to execute our duties. I got out and told these men we police have the authority to search as they are suspected of marijuana ..."

The court cannot allow the police to sow dangerous seeds by admitting as evidence items, whether they are prohibited narcotics or not, secured by the police, in an unlawful warrantless search. Given the manner they executed the search and arrest, I have no hesitation in rejecting as admissible the fruits of an illegal search as it would tantamount to turning a blind eye to illegality.

12. As I said in Police v Feesago (unreported 9/11/09) in enacting section 14A, Parliament's objective, was to ease enforcement of the law relating to narcotics offences but at the same the court should balance legitimate concerns for effective law enforcement with the common law right to security against unreasonable search and seizure. When the police officers turned into and entered the resort ground to search the red vehicle and its occupants they had no reasonable grounds to believe that narcotics were in the vehicle. Indeed when they left the police post the only information they police officers had was a red car. The circumstances which led to the warrantless search of the vehicle and the arrest of the occupants and the manner in which the search and arrest were carried out rendered the unlawful search and arrests unreasonable. It is implicit in the right to be secure against unreasonable search or seizure that reasonableness is to be assessed when the search is about to take place and then as to the manner of the search while it is actually taking place. Except for very special circumstances however, treating an unlawful search as reasonable is a path which the court should surely be reluctant to walk

13. The remarks of Sapolu CJ and Nelson J in Police v Masame and Police v Nauer referred in 6 above do not and cannot justify the police in accepting as reliable on face value all the information given to them by their informers. To comply with section 14A Narcotics Act the police on receiving information from their informers must take steps to verify the reliability and accuracy of the information before they execute a warrantless search.

Result

(a) The search and arrest at the resort ground was illegal and unreasonable. It follows that the subsequent search at the police post was also illegal and unreasonable.
(b) The evidence obtained as a result of the illegal search is not admissible.
(c) The charge of possession against the accused is dismissed.

JUSTICE VAAI